JIMMY L. SMITH
MIKE PARRIS, WARDEN
Assigned on Briefs November 7, 2017
from the Circuit Court for Lake County No. 17-CR-10357 R. Lee
Moore, Jr., Judge
L. Smith, the Petitioner, filed a pro se Application for Writ
of Habeas Corpus ("the petition"), claiming that
his convictions in Counts 1 through 4 of Case Number 87F1868
are void because the Davidson County District Attorney
General only signed Count 5 of the multi-count indictment.
The Petitioner also claimed that his conviction in Count 2
was void because the judgment failed to state that he had
been found guilty by a jury. The habeas corpus court
summarily dismissed the petition. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
L. Smith, Tiptonville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; and Phil Bivens,
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ.,
L. HOLLOWAY, JR., JUDGE
Davidson County Grand Jury indicted the Petitioner in
September 1987 in case number 87F1868. The five-count
indictment charged the Petitioner in Count 1 with Aggravated
Kidnapping, Count 2 with Aggravated Rape, Counts 3 and 4 with
Aggravated Sexual Battery, and Count 5 with Aggravated
Robbery. The indictment was signed at the bottom of Count 5
by the Davidson County District Attorney General. Following a
jury trial, the Petitioner was convicted of Counts 1 through
4 and ordered to serve an effective 115-year sentence. The
Petitioner was found not guilty of Count 5. The convictions
and sentence were affirmed on appeal. State v. Jimmy L.
Smith, No. 88-177-III, 1989 WL 51613, at *2 (Tenn. Crim.
App. May 19, 1989), perm. app. denied (Tenn. Aug.
March 30, 2017, the Petitioner filed what he stated was his
fifth application for writ of habeas corpus, claiming that
the judgments in case number 87F1868 were void because the
district attorney general failed to sign each page of the
indictment and because the judgment of conviction for Count 2
failed to state that he was convicted by a
jury. Following the summary dismissal of his
petition, the Petitioner timely appealed.
appeal, the Petitioner claims that the habeas corpus court
erred in holding that the district attorney general is not
required to sign each count of the indictment and that his
judgment in Count 2 was not void. The State avers that the
habeas corpus court properly dismissed the petition because
the petition failed to state a cognizable claim. We agree
with the State.
corpus relief may only be granted in limited circumstances.
Edwards v. State, 269 S.W.3d 915, 920 (Tenn. 2008).
Unlike petitions for post-conviction relief, "the
purpose of the habeas corpus petition is to contest void and
not merely voidable judgments." Potts v. State,
833 S.W.2d 60, 62 (Tenn. 1992) (citing State ex rel.
Newsome v. Henderson, 424 S.W.2d 186, 189 (Tenn. 1968)).
"Habeas corpus relief is available in Tennessee only
when 'it appears upon the face of the judgment or the
record of the proceedings upon which the judgment is
rendered' that a convicting court was without
jurisdiction or authority to sentence a defendant, or that a
defendant's sentence of imprisonment or other restraint
has expired." Archer v. State, 851 S.W.2d 157,
164 (Tenn. 1993) (quoting State v. Galloway, 45
Tenn. (5 Cold.) 326, 336-37 (1868)). A petitioner bears the
burden of establishing by a preponderance of the evidence
that a judgment is void or that the confinement is illegal.
Wyatt v. State, 24 S.W.3d 319, 322 (Tenn. 2000). A
habeas corpus petition may be summarily dismissed without a
hearing when the petition "fails to ...